When Elena met Antonin and Anthony

posted at 12:56 pm on May 10, 2010 by Ed Morrissey

Most people who oppose Elena Kagan’s nomination to the Supreme Court will focus on either her defense of Harvard’s attempt to bar military recruiters from the campus or her lack of judicial experience. However, as HA reader Frank points out, her record as Solicitor General will provide an argument on competence, too. Kagan didn’t do her homework before arguing the Citizens United case on behalf of the Obama administration and the FEC — which her probably-soon-to-be colleagues on the Supreme Court wasted no time in pointing out. It came at the very beginning of her oral argument, when one might expect a Solicitor General to attempt to impress the panel with her grasp of law and precedent:

ORAL ARGUMENT OF ELENA KAGAN

ON BEHALF OF THE APPELLEE GENERAL KAGAN: Mr. Chief Justice and may it please the Court:

I have three very quick points to make about the government position. The first is that this issue has a long history. For over 100 years Congress has made a judgment that corporations must be subject to special rules when they participate in elections and this Court has never questioned that judgment.

Number two –

JUSTICE SCALIA: Wait, wait, wait, wait. We never questioned it, but we never approved it, either. And we gave some really weird interpretations to the Taft-Hartley Act in order to avoid confronting the question.

GENERAL KAGAN: I will repeat what I said, Justice Scalia: For 100 years this Court, faced with many opportunities to do so, left standing the legislation that is at issue in this case — first the contribution limits, then the expenditure limits that came in by way of Taft-Hartley — and then of course in Austin specifically approved those limits.

JUSTICE SCALIA: I don’t understand what you are saying. I mean, we are not a self — self-starting institution here. We only disapprove of something when somebody asks us to. And if there was no occasion for us to approve or disapprove, it proves nothing whatever that we didn’t disapprove it.

GENERAL KAGAN: Well, you are not a self-starting institution. But many litigants brought many cases to you in 1907 and onwards and in each case this Court turns down, declined the opportunity, to invalidate or otherwise interfere with this legislation.

JUSTICE KENNEDY: But that judgment was validated by Buckley’s contribution-expenditure line. And you’re correct if you look at contributions, but this is an expenditure case. And I think that it doesn’t clarify the situation to say that for100 years — to suggest that for 100 years we would have allowed expenditure limitations, which in order to work at all have to have a speaker-based distinction, exemption from media, content-based distinction, time-based distinction. We’ve never allowed that.

In fact, the crux of the case was the issue of limiting expenditures as an expression of political speech, not contributions. Kagan started off her argument by misconstruing the issue and then offering a factually incorrect reading of precedent. Both Scalia and Kennedy objected to it before Kagan even had time to get the argument completed, although as the transcript notes, she didn’t pay much attention to them.

Without any judicial experience, Kagan has to rely on her performance at the Court as Solicitor General over a short period of fifteen months — and at best, it’s mixed.

Same Sex Marriage – As part of her confirmation for Solicitor General, Ms. Kagan was asked whether she would defend the constitutionality of the Defense of Marriage Act, which said that states need not recognize same-sex marriages performed in other states. Ms. Kagan’s said, as solicitor general, she would defend any acts “if there is any reasonable basis to do so.” She noted this was “a low bar for a statute to climb over.”

Here we have a nice clear distinction between the Shrub and Zero pResidencies: Shrub threw Meiers to the wolves as a tactic–she was never a serious candidate. Shrub and his people had, by then, gotten a clue about how to work the demoncrats on appointments. Does anyone seriously think that if Alito had been the first name put forward, he wouldn’t have gotten thrown back by the dims? Zero and his people don’t have a clue and are dead set against getting one–they’re ideologues, aging, raging radicals. They do what they do based on their wacked out, soft-headed, self-serving “principles”. Zero wants Kagan on the Court, because of what she is and represents for him, even though she’ll be completely ineffectual. In this context, ineffectual is good.

I’m with those who think it would be unwise to defeat this nomination. Obama is only going to appoint leftists to the court. It is better for our side that he plays identity politics and appoints mediocrities as opposed to going deep for a nominee with actual intellectual heft in the constitutional law department.

Kagan started off her argument by misconstruing the issue and then offering a factually incorrect reading of precedent. Both Scalia and Kennedy objected to it before Kagan even had time to get the argument completed, although as the transcript notes, she didn’t pay much attention to them.

Hehehe. And Obowamao was bloviating the other day that she & her intellect was of the sort although young, she would would persuade, pull or otherwise influence the others on the bench to see things her way.

Well based on the above exchange, I say by all means, do, do waste a current liberal seat with a lightweight like her. Better to have her babbling in the minority than have some one like Kennedy who could and did on occasions pull otherwherwise conservatives to his side.

Buuut… I sure pray that God keeps the constitutionalist judges hearty and hale thru out the Obambi years until we can get one of our own back in the Oval Office. And no, McVain ain’t one of us.

In a 1980 opinion piece in her college newspaper, Ms. Kagan expressed her hope that the future would “be marked by American disillusionment with conservative programs and solutions, and that a new, revitalized, perhaps more leftist left will once again come to the fore.”

She may be one of those people who think they can always get away with re-framing whatever issue is under debate, no matter how illogical or ignorant it seems to a listener.

The president’s body language in the photo on the home page suggests he’s not exactly thrilled with her himself. Both his right leg and his right arm seem to put up a defense in her direction, and his hand is over his mouth.

If you think (anyone, everyone thinks) that Barack Obama’s “anti electronic communications devices” speech the other day was somewhat out of Leftfield, IT WAS: out of Leftfield, in timing with the Elena Kagan nomination announcement.

Kagan’s scratchy history includes some documentation of her “opinions” and “feelings” that the Freedom of Speech should be curtailed, particularly if and when it’s inconvenient to the Executive Branch.

And guess what that impacts? The FCC. The internet. Government controls of the internet, broadcasting, recriminations against individuals exercising their First Amendment Rights.

And guess what else? Guess who else is keen on this objective? Bob Bauer, former DNC legal counsel, currently White House counsel, as also Barack Obama.

Their plans, they are becoming more apparent with passing hours. Cap ‘N’ Trade, Global Warming, Gay Marriage, Suppression of Freedom of Religion, etc., seems to be all balled up in the main objective by the Obama Group and that is to subvert the U.S. Constitution. What better way to do that than by an Executive Branch threatening others with an ideologue Celebrity Character making preprinted propaganda speeches and a Supreme Court who is just chatty enough to get the “wayward Conservative opinions” under the table?

She may be one of those people who think they can always get away with re-framing whatever issue is under debate, no matter how illogical or ignorant it seems to a listener.

The president’s body language in the photo on the home page suggests he’s not exactly thrilled with her himself. Both his right leg and his right arm seem to put up a defense in her direction, and his hand is over his mouth.

alice on May 10, 2010 at 11:06 PM

Kagan is almost certainly an Axelrod-Bauer-Dunn nominee and Obama’s just posing for the photos and making the speeches.

All I can say is, if a Republican won’t vote against her, I won’t vote FOR them. Simple as that, it’s either put up or shut up.

gordo on May 10, 2010 at 9:42 PM

I AGREE WITH YOU! I’ve had two days to read about Kagan and already I find numerous offenses about her to the SC.

The main one being that from what history IS recorded about who Kagan is, the one thing she has established is she is NOT a fan of the Constitution. Rather, she’s an activist who bases her opinions on “feelings” like wants and what she thinks should be and ought to be and how it might be redone to be what. She’s an academic who works a classroom and a faculty list and should never be on the SC.

The primary qualification for the SC is to possess FIDELITY TO THE CONSTITUTION. That means, you don’t want it reworked, customized, accommodated to suit your feelings and wishes, but that one is is capable of and determined to (and has proven ability to) bear fidelity to the document as it exists.